Washburn v. Winkler , 6 Ohio Law. Abs. 689 ( 1928 )

WILLIAMS, J.

We think the contention is well founded. The defendant in error seeks to justify its admission in evidence upon the principle laid down in 118 Ohio St., 442, 450; 1 Ohio Bar, 442, 450. In that case the physicians making the certificate were called as witnesses in the will contest and were fully examined upon all matters contained in the certificate. In the instant case the physicians making the certificate were not so examined because they had no recollection of the matter whatever. The admission of the certificate was therefore prejudicial and the error related to both issues involved in the contest, because the soundness or unsoundness of the mind of the testator was an important fact to be considered in determining the question of undue influence.

We feel that the trial judge did not carefully apply the rule which requires that a non-expert witness who is called upon to express an opinion that the testator’s mind was unsound, must first relate all the iacts which tend to show irrationality and must then base his opinion upon the facts so related. While the matter of qualification is largely in the discretion of the trial judge, the rule must be' adhered to.

We think there is no other reversible error apparent upon the face of the record, but for the reasons given the judgment will be reversed.

(Richards and Lloyd, JJ., concur.)